Central Administrative Tribunal - Delhi
Umakant Joshi And Anr vs Information And Broadcasting on 19 March, 2024
1
OA 4036/2023
C-3/item-21
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./4036/2023
M.A./106/2024
M.A./452/2024
Order reserved on :19.02.2024
Order pronounced on :19.03.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Uma Kant Joshi
S/o Shri M.N. Joshi
R/o D4/11, Radio Colony,
Kingsway Camp, Delhi (Group `B')
2. Anil Kumar Khare,
S/o Shri Charan Sewak Khare
R/o 27, Anand Dham,
Near Income Tax Office, Mathura
U.P.-281004 ...Applicants
(Through Mr. Ashwani Bhardwaj and Mr. Arun Bhardwaj,
Advocates)
VERSUS
1. Union of India
Through the Secretary,
Ministry of Information and Broadcasting,
Shastri Bhawan,
New Delhi
2. Chief Executive Officer,
Prasar Bharati,
Prasar Bharati Secretariat,
Prasar Bharati House, Tower-C
Copernicus Marg, Mandi House,
New Delhi ...Respondents
(Through Ms. Vertika Sharma, Mr. Hanu Bhaskar,
Mr. Kunal Goswami, Mr. Yogesh Sharma, for private
respondents)
2
OA 4036/2023
C-3/item-21
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) By way of this OA, the applicants have sought the following reliefs:
"8. a QUASH the Order F.No.V-13011/1/2023-BAE dt. 14.12.2023, passed by the Respondent No.1, and b. DIRECT the Respondents to fill up the posts of Assistant Director (Engineering), from the eligible persons, strictly in accordance with the recruitment rules dt. 4.11.1981 (as amended till date) of the post of Assistant Director as provided in the Indian Broadcasting (Engineers) Services (hereinafter referred to as IB(E)S, without giving any relaxation contrary to the rules, AND c. GRANT cost in favour of the Applicants and PASS any other or further order(s), in favour of the Applicants, which this Hon'ble Tribunal may deem fit, just & proper in the abovementioned facts & circumstances."
2. The applicants, two in number, joined as Engineering Assistant on 16.08.1994 and 01.01.1996 respectively. Thereafter, they were promoted to the post of Senior Engineering Assistant on 23.09.2019 and 21.09.2019 respectively and Assistant Engineer only on 01.01.2024. Learned Senior Counsel representing the applicants submits, that as no DPC was convened by the respondents between the years 1994 to 2019, similiarly placed persons approached this Tribunal in OA No. 180/2015 which was disposed of on 23.12.2016. It was only in compliance of the 3 OA 4036/2023 C-3/item-21 orders passed in O.A. 180/2015 that the respondents convened the DPC, and the applicants were promoted to the post of Assistant Engineer on 01.01.2024. Detailing the grievance of the applicants, learned senior counsel submits that by invoking the relaxation clause the diploma holders working with the AIR/DD have been promoted by an order dated 14.12.2023 to the post of Assistant Director (E) in the cadre of JTS of IB(E)S against the posts earmarked for the direct recruitment quota, which is in complete violation of the Recruitment Rules. He states that the notice in the instant O.A. was issued on 18.12.2023, whereby the following order was passed :-
"The applicants are aggrieved by the communication dated 14.12.2023, vide which one-time relaxation is being given in requisite educational qualification in the Indian Broadcasting (Engineers) Service Rules.
Issue notice to the respondents. Mr. Rajeev Kumar, learned counsel accepts notice on behalf of Respondent No. 1. Mr. KunalGoswami, who appears as proxy to Ms. Vertika Sharma, learned counsel for Respondent No. 2, accepts notice.
Learned counsel for the applicants presses for consideration on the applicants' prayer for interim relief as set forth in para 9 of the OA, by way of stay in operation of the impugned communication submitting that the respondents are likely to make appointments further affording this relaxation any time now.
Learned proxy counsel appearing for Respondent No. 2 prays that the matter may be adjourned on the ground that the arguing counsel is not available today to assist us in adjudicating the matter on interim relief. Meanwhile, the respondents are directed not to take any precipitate action to frustrate this OA."
2.1 Learned counsel for the applicants submits that in spite of a clear direction of this Tribunal, the respondents 4 OA 4036/2023 C-3/item-21 have gone ahead and issued the order dated 17.02.2024, whereby the diploma holders have further been granted Junior Time Scale. Accordingly, the applicant presses for interim order or an urgent hearing in the OA. The counter affidavit has been filed by the official respondents. Learned counsel appearing on behalf of the private respondents submits that he would adopt the reply filed on behalf of the official respondents. Therefore pleadings qua the private respondents are also complete.
3. We have heard the learned counsel for the parties with their consent, at this stage itself.
4. MA No.106/2024 has been filed by the applicants seeking impleadment of DOP&T and UPSC in the array of the parties. Since the OA itself is being heard, with the consent of the learned counsels for the parties, at this very stage, no orders are required to be passed in the said MA. The same stands disposed of, accordingly.
5. Learned counsel for the applicants, while taking us to the history and background of this OA, draws attention to Annexure-A/2, wherein under para 13 i.e. "Power to relax", reads as under:-
"13. Power to relax: Where Government is of the opinion that it is necessary or expedient so to do, it may by order, for reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of these 5 OA 4036/2023 C-3/item-21 rules with respect to any class or category of persons for posts."
5.1 He submits that the respondents were obliged to seek the consultation of the UPSC in the absence of the same as mandated in the rules as reproduced herein above the relaxation was illegal and arbitrary. He draws attention to the Indian Broadcasting (Engineers) (Amendment) Rules, 2013, wherein it finds mention that the candidates shall possess a degree in engineering. He points out from time to time i.e. in the years 2009 and 2013, the Recruitment Rules have undergone a change whereby the condition of three years, as provided earlier, the Assistant Engineers with two years regular service were made eligible for promotion to the post of Junior Time Scale while the Essential qualification remained same i.e. Degree in Engineering. He submits that the post of Junior Time Scale is to be filled 50% by promotion, and the applicants are eligible to be considered against the same. He states that by virtue of the impugned order and invoking the relaxation clause, respondents have amended the prescribed RRs their own, which they could not have done legally. Further by the said exercise, the respondents have changed the mode of recruitment by extending diploma holders the Junior Time Scale as against the mandate of the rules. He states that a category has been illegally added by the respondents, whereby 360 vacancies 6 OA 4036/2023 C-3/item-21 earmarked for direct recruitment quota have been temporarily diverted giving one time relaxation in educational qualification, which is in gross violation of Recruitment Rules, framed under Article 309 of the Constitution, a statutory binding. He states that it is detrimental to the interest of the applicants in the O.A. who have been deprived of not only their fundamental rights, but they have also been put to disadvantage by extending benefit to the diploma holders, who were otherwise not eligible to be considered for promotion.
5.2 He places reliance on the following judgments:
i) LPA No. 71/1973 decided on 26.08.1980 in the matter of Om Prakash and Ors. versus Union of India and Others. Hon'ble High Court of Delhi, paras 14 to 18 are reproduced herein below:-
"14. The learned judge took the view that Rule 29-A conferred an "all comprehensive power" on the Government and they were empowered to assign such seniority to the direct recruits as they have done in the list in question. We do not agree. The power to relax does not mean the power to dispense with a rule altogether. The Government dispensed with Rule 25 in the case of direct recruits. This amounts to abrogation or repeal of that rule in so far as it reserves for the direct recruits the quota of 25 per cent and the necessary principle of rotation. Both these principles were thrown to winds. The claims of direct recruits were passed over in silence by resorting to the power to relax. It also meant that the service conditions of direct recruits were totally ignored. It set at naught the conditions of appointment which were offered to direct recruits at the time their option was invited. All this has been done in order to placate the promotees. But no power can be exercised to the detriment of "any class of category of persons or posts" so as to confer a corresponding benefit on another class or category of 7 OA 4036/2023 C-3/item-21 persons or posts. This is exactly what has been done in this case. This is robing Peter or pay Paul, as counsel put it.
15. Relax is a word of common use, and of commonly understood meaning. The ordinary significance of the term is to lessen, loosen, reduce, mitigate, make less rigid or severe. It is not synonymous with "abandon." (Carpus Juris Secundum Vol. 76 P. 625).
16. The power to relax savours of the suspending and dispensing power of the King during the latter seventeenth century England. The King could suspend temporarily the operation of any statute or dispense with the laws. The English parliament found that this power was capable of dangerous applications. The Bill of Rights 1688 abolished the King's alleged power of suspending laws and dispensing with the operation of statutes, save where this was authority by Parliament.
17. It is difficult to see how any rule which determines the rights inter se of two classes of employees can be relaxed. Power under Rule 29-A can be exercised to relieve hardship in a rare case or for the exigency of service as a whole and not for this wing or that wing of the Service as a whole and not for this wing or that wing of the Service. It certainly cannot be exercised for the purpose of benefitting one class at the expense of another class of employees in violation of the rules. That a large number of representations were made and that it created a difficult situation for the Government was not a sufficient justification for invoking the power to relax as was thought by the learned judge.
If we hold, as was held by the learned judge, that the Government had absolute discretion to dispense with a particular rule or to "relax" it in any manner it liked Rule 29-A would suffer from the vice of excessive delegation and would be bad on that short ground. Power to relax is not power to annul or to destroy. Whatever the term "relax" may mean it is not synonymous with repeal or abrogation.
18. Power to "relax" if it is exercised in such a manner as has been done in this case may well amount to a subordinate legislative power. The power to relax is not coextensive with power to legislate. Rule making power is given only to the President under Article 309 of the Constitution. The exercise of power in an arbitrary manner may amount to the usurpation of the presidential power to legislate. In our opinion, the order dated 8th October, 1971 strikes at the very root of the rules and must be held to be illegal and without jurisdiction. This is our conclusion."8 OA 4036/2023
C-3/item-21
ii) Judgment of honorable High Court of Madras in WP No. 10953/2019 in Sathish Vs. Secretary to Government of Tamil Nadu Environment and Forest Department and Another. Relevant paras 14 to 16 of the said judgment are reproduced below:-
"14. Thus, the exercise of judicial review must be cautiously made in matters relating to age and educational qualifications, which all are prescribed by the State. In respect of grant of relaxation by the competent authorities, this Court has considered the legal principles, in W.P. No. 2762 of 2014 dated 05.10.2017. The relevant paragraphs are extracted here under:
10. In interpreting provisions for relaxation, it has been pointed out that the power of relaxation even if generally included in the Service Rules could either be for the purpose of mitigating hardship or to meet a special and deserving situation. Any arbitrary exercise of such power must be guarded against and that the rule of relaxation must get pragmatic construction, SO as to achieve effective implementation of good policy.
11. The Hon'ble Supreme Court of India, in the case of Suraj Prakash Gupta v. State of J&K (2000) 7 SCC 5611, reiterated the principles, in paragraph-
32, as exercised cautiously and sparingly in order to rectify the Injustice caused to a particular case. Thus, the relaxation cannot be claimed as a matter of right by the candidates.
15. Rule of relaxation is a discretion granted to the Government and such a discretionary power has to be exercised judiciously and not in a routine manner. Relaxation being a discretionary power has to be exercised by the competent authorities by applying the facts in a particular case and not in a mechanical way to grant certain service benefits to the similarly placed persons. Granting relaxation in one case by the Government cannot be cited as a precedent in other cases. In view of the fact that the relaxation is an exception and cannot be followed in a routine affair. Thus, this Court is of the firm view that all the appointments and regularizations are to be made only by following the recruitment rules in force strictly and no relaxation can be granted by citing other cases and the Government also to be cautious while exercising the powers of relaxation under Rule 48 in certain cases. 9 OA 4036/2023 C-3/item-21
16. The consequences of exercising the power of relaxation under Rule 48 in a routine manner will affect the right of the employees who were appointed regularly in accordance with the recruitment rules in force. In other words, there are large number of employees who are working in the Departments, were fully qualified and who were appointed in accordance with the recruitment and service rules in force. Any relaxation granted under Rule 48 should not have an impact of depriving those candidates, who were appointed regularly in accordance with the rules in force, specifically in the matter of promotions."
iii) In LPA No. 253/2021, titled Sonika Kumari and others Vs. Devastotra Poddar and others, the Hon'ble High Court of Delhi held as under:-
"36. The Appellants who were purely contractual employees and who were not even receiving regular Pay Scale as per Pay Level-7 have been shown undue favor by the organization by permitting them to participate in the process of appointment in respect of Level-10 Post for reasons best known to the employer.
37. Learned Counsel for the Appellants has placed heavy reliance upon the Office Memorandum dated 26.11.2020 and his contention is that as per the aforesaid Office Memorandum for the post of Assistant Director (Technical), the immediate lower pay level shall be Pay Level-7.
38. This Court is of the considered opinion that such a relaxation could have only be given by the Central Government, as under Regulation 17, the power lies with the Central Government to relax any provisions of the Regulation. The Director (HR) is not the Central Government nor FSSAI under the Food Safety and Standards Act, 2006, and, therefore, the Office Memorandum issued on the subject which was brought to the notice of this Court by the Learned Counsel does not help the Appellants in any manner.
xxxx xxxx xxxx xxxxxx
42. This Court has carefully gone through the aforesaid judgment. However, in the present case, the statutory rules cannot be given a go-by, and the statutory rules do not provide for appointment to the post of Assistant Director (Technical) from persons who are Pay Level-7 Officers, that too who are working on a contractual basis. The Appellants are not at all qualified as per the Recruitment and Appointment Regulations, 2018, and, therefore, the judgment does not help the Appellants in any manner."10 OA 4036/2023
C-3/item-21
iv) The Apex Court in Civil Appeal No.1775 of 2005 titled Secretary, A.P. Public Service Commission Vs. B. Swapna and others held:
"15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power c to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandrafyer v. Union of Indias this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
xxxxxxxxxxx In Krushna Chandra Sahu (Dr.) v. State of Orissas it was held as under:
"36. It may be pointed out that rule-making function under
18. Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or legislating a rule of selection."
5.3 To a specific query asked to the learned counsel for the applicants, he submits that by virtue of this relaxation in extending promotion to the diploma holders who are not entitled to any promotion in terms of the RRs, the private respondents would rather march over the applicants and would be declared seniors while extending Junior Time Scale. Therefore, they ventilate their grievance seeking the aforementioned relief(s).
11OA 4036/2023 C-3/item-21 5.4 Summarizing his arguments, he states that the respondents have incorrectly exercised the power to relax, by which they have in fact abrogated /repealed the rules. He states that the power to relax could not be exercised to the benefit of one class and disadvantage of the other. The rules being under Article 309 could only be amended after invoking the Presidential power to legislate. He reiterates that unqualified persons have been extended promotions in the garb of the relaxation clause who will march over the applicants, as against the statutory rules. He draws strength from para 3.11 of the DOP&T OM dt. 29.05.1985 reads as under:-
"Where an education qualification has been prescribed in the recruitment rules, all candidates including the SC, ST and OBC candidates shall satisfy the said qualification. Sometimes, a minimum number of marks or a minimum grade is prescribed as part of the educational qualification in the recruitment rules. In such cases, the minimum marks grade so prescribed shall uniformly apply to all candidates including SC, ST and OBC candidates."
5.5 He further states that in terms of the aforesaid OM dated 29.05.1985 there could be no relaxation in the essential qualification as prescribed in the statutory Rules envisaged under Article 309 of the Constitution. Learned counsel for the applicants further points out that it is incorrect to say that the private respondents do not have promotional avenues. In fact, the promotional avenues did exist and the applicants were ineligible and from 1992 till 12 OA 4036/2023 C-3/item-21 date they had ample opportunities to upgrade themselves and acquire degree in Engineering so as to become eligible under the recruitment rules amended from time to time.
6. Mr. Hanu Bhaskar, learned counsel for the official respondents draws our attention to paras 4 and 5 of the counter reply and states that the power to relax the rules as envisaged in the Recruitment Rules has been exercised by the respondents after seeking the necessary approvals. He clarifies that Prasar Bharti being an autonomous body is not required to seek the advice of UPSC. He adds that the applicants herein were originally employees of the Ministry of Telecom, who are on deemed deputation with the respondent organization (Prasar Bharti). He states that the applicants have challenged the communication dated 14.12.2013 vide which relaxation has been given to the diploma holders and in no way the applicants have been put to any disadvantage in terms of the said order. He states that the applicants are entitled to promotion in their own quota i.e. the promotion quota which is reserved for them. The same remains intact irrespective of the said relaxation exercised in favor of the private respondents. He clarifies and asserts that the private respondents would never become senior to the applicants. In view of the fact, that there were no diploma/degree holders working in the level of Junior 13 OA 4036/2023 C-3/item-21 Time Scale. Since the respondents were unable to manage their affairs to meet the exigencies and run the organization, the route of relaxation and promotion of the private respondents, who are admittedly diploma holders but became Assistant Engineers in the year 1992, having no promotional avenues, it was a conscious decision taken in the benefit of private respondents as well as the organization, so as to meet their requirement to adopt this mode of one time relaxation. He says that admittedly the respondents had options available in the circumstances to meet the administrative exigencies which may include, a) amendment in the recruitment rules b) seeking relaxation in terms of para 13 of Recruitment Rules no. 3 and c) avail the direct recruitment quota. However, in the present circumstances, the respondents thought it appropriate to take the route of relaxation. He states that in any which way, the applicants are entitled only in the promotion quota and the private respondents have been extended promotion against the direct recruitment quota, stating that there were two different quotas available. He submits that the applicants belong to the promotion quota and were promoted on 01.01.2024 as Assistant Engineers and they would be eligible for JTS only on/ after 01.01.2026. Therefore, the present O.A. is misplaced and does not warrant interference of the Tribunal. The only apprehension that the applicants 14 OA 4036/2023 C-3/item-21 may have is that the applicants by virtue of the relaxation have been extended promotion to JTS on 15.02.2024 and they will be placed over them, which, according to the respondents is misplaced, as the applicants were not entitled for promotion not only when the original application was filed but when the matter is being heard finally. 6.1 Learned counsel for the respondents places reliance on the DoP&T OM dated 18.03.1988. The relevant paragraph of the same reads as under:-
"It should precisely be stated whether age and educational qualification prescribed for direct recruits should also apply in the case of promotees. Unless there are any specific grounds, the age limit prescribed for direct recruits are not insisted upon in the case of promotes. Regarding educational qualifications, these are not generally insisted upon in the case of promotion to posts of non-technical nature; but for scientific and technical posts, these should be insisted upon, in the interest of administrative efficiency, at least in the case of senior Group 'A' posts in the scale of Rs.3000-4500 and above. Sometimes the qualifications for junior Group 'A' and Group 'B' posts may not be insisted upon in full but only the basic qualification in the discipline may be insisted upon, for example, if a degree in Civil Engineering is the qualification prescribed for direct recruits, the promotees may be required to possess at least a Diploma in Civil Engineering."
7. Mr. Yogesh Sharma, learned counsel for the private respondents, clarifies that all the private respondents to whom he represents are in fact senior to the applicants in the feeder grade i.e. Engineering Assistant and Senior Engineering Assistant and as well as Assistant Engineer. He states that private respondents were appointed as Assistant Engineers in the year 1992, while the applicants have been 15 OA 4036/2023 C-3/item-21 extended promotion to the said post only on 01.01.2024, i.e. after filing of this present O.A. He points out that this OA was filed on 17.12.2023, and on the relevant date, none of the applicants were in fact holding the feeder post of Assistant Engineer. He states that the applicants have been promoted only on 01.01.2024 to the post of Assistant Engineer maybe against the vacancy of 2022, however, it cannot be disputed that they could be considered for extension of JTS after completion of two years of regular service i.e. 0n 01.01.2026. He states that even otherwise, the private respondents have been promoted against 50% quota prescribed for direct recruitment. The present application is in fact in the form of a PIL as no cause of action has arisen in respect of the applicants. He states that the impugned order clearly finds mention that it was only a one time relaxation for the reasons explained in the impugned order itself and mentioning that it was against the direct recruitment quota and the private respondents would be placed en-block below the existing seniority list of Junior Time Scale with the respondents. He draws strength from the judgments of the Hon'ble High Court of Delhi in Central Engineering Service Class I (Dr.) Association & Ors Vs Union of India and Ors., 156 (2009) Delhi Law Times 300 DB decided on 05.12.2008. The relevant 16 OA 4036/2023 C-3/item-21 portions read as under:
"22. It was suggested by learned Counsel for the petitioners that prejudice was caused to his clients in as much as their seniority was adversely affected because there is no period specified for promotion of AEEs (such as the petitioners) to the post of Executive Engineer. Theoretically, therefore, they could have been promoted on the very first day that they joined the service and the diversion of vacancies has denied this opportunity to them. This submission is mentioned only to be rejected forthwith. No such case was ever put forward 9 by the petitioners before the Tribunal and no instance has been brought to our notice of any AEE having been promoted to the post of Executive Engineer on the very day that he joined the service. The submission seems to be entirely hypothetical and one of desperation by clutching at a straw. In the absence of anything worthwhile or substantial, we are not inclined to seriously consider the completely illusory and imaginary situation set out by learned Counsel.
xxxx xxxx xxxx xxxx
27. The next submission of learned Counsel for the petitioners was that assuming the Central Government was entitled to invoke the 1954 Rules, even then, Rule 25 thereof did not enable it to divert vacancies from one category (AEEs) to another (AEs). It was also submitted, in this context, that Rule 25 did not enable the Central Government to alter the statutorily fixed quota applicable for promotions to the post of Executive Engineers. It was further submit- ted that the statutorily fixed quota could be altered only by amending the 1954 Rules, as had been done from time to time, and not by administrative instructions.
28. The power of relaxation conferred by Rule 25 of the 1954 Rules is extremely wide. It enables the Central Government to relax any provision of the 1954 Rules with respect to any category or class of persons. Of course, this is possible only in consultation with the UPSC. In this case, the power has been exercised by the Central Government with respect to the entire category or class of AEs. What has been done is to relax the provisions of the rules requiring filling up the posts of Executive Engineer in a particular manner, that is, by relaxing the adherence to a quota. This has been achieved, though in a slightly circuitous manner, by diverting vacancies from the quota of AEEs to the quota of AEs.
29. It is nobody's case that Rule 25 of the 1954 Rules confers arbitrary powers or has been applied arbitrarily. Indeed, this cannot even be the case of the petitioners because there does appear to be adequate justification for invoking the power of relaxation in its widest amplitude. The power is available and has been used, inter alia, to mitigate the hardship caused to a category or class of 17 OA 4036/2023 C-3/item-21 persons, many of whom were not able to obtain the benefits of regularization even though they had worked as Executive Engineers for as long as ten years and many of them had even retired without reaping any such benefits.
xxxx xxxx xxxx xxxx [39. Learned Counsel further submitted that the Central Government was obliged to follow the law and the principles laid down by the Supreme Court in A.K. Subraman v. Union of India, (1975) 1 SCC 319 and P.S. Mahal v. Union of India, (1984) 4 SCC 545. There can hardly be any doubt that the law and principles laid down by the Supreme Court have to be followed and adhered to. But unfortunately, learned Counsel has been unable to demonstrate to us which principle was not adhered to by the Central Government. At best, it can be argued that the excess promotions made of AEs are irregular, but in the facts of the case, they cannot be said to be totally illegal [V.B. Badami v. State of Mysore, (1976) 2 SCC 901]. Even in this scenario, we have not been told how any prejudice has been caused to the petitioners either in the pre-1996 situation or even post-1996. The submission, therefore, is really of an academic nature and so we are not inclined to spend time on it. To sum up, we are of the opinion that Rule 25 of the 1954 Rules permitted diversion of vacancies.
40. The final contention of learned Counsel for the petitioners was that the Central Government did not correctly appreciate the decision of the Supreme Court in J.N. Goel and, therefore, carried out an exercise not mandated by that decision. We have dealt with this issue above and do not feel the necessity of repeating ourselves. Suffice it to say that it is correct that J.N. Goel did not a concern itself with any dispute involving AEEs - it was concerned only with issues relating to graduate and diploma-holder AEs. It was for resolving that dispute that the Supreme Court said that the promotion of diploma- holder AEs to the post of Executive Engineer on an ad hoc basis would have to be reviewed. This direction of the Supreme Court could not be carried out in isolation or by overlooking the rights, concerns and aspirations of graduate AEs. It is this compulsion that necessitated a wholesale review of the impact of ad hoc promotions of AEs to the grade of Executive Engineer, leading up to the Office Memorandum dated 6th July, 1999. To conclude, the Central Government correctly appreciated J.N. Goel particularly the principles laid down in that decision and rightly acted on them.
Additional submissions:
41. Learned Counsel for Respondent Nos. 5 and 6 (in WP (C) No. 2562 of 2002) raised certain additional submissions, such as that the petitioners were setting up a new case, which was not permissible; the writ petition ought not to be entertained on the grounds of delay and laches, and the petitioners have failed to implead necessary 18 OA 4036/2023 C-3/item-21 parties in the writ petition. We are not taking any decision on any of these issues because on the merits of the controversy, we find d that the petitioners have made out no case for interference with the impugned order of the Tribunal."
8. Mr. Hanu Bhaskar, drawing attention to the judgments referred to by the learned senior counsel LPA 71/1973 points out that the issue in the said Writ Petition was different as it was a claim between the direct recruitment and promotes, which is not the issue in the instant OA. In the LPA seniority rule was challenged, while in the present fact it is the relaxation clause which has been invoked. Drawing attention to the judgment passed by the Hon'ble High Court of Madras referred to by the learned counsel, he points out that no relaxation has been extended in the prescribed Recruitment Rules. In fact it was only to strike a balance the stagnation and meet the requirement of the organization, that the relaxation clause has been invoked in terms of the aforementioned DoP&T OM. The DoP&T OM is self explanatory as to situation, as to when the relaxation clause could be resorted to and this was one such situation.
9. From the pleadings of the parties and the submissions by the counsels during arguments the following issues pertinent to the present OA are delineated:
a) Whether the present applicants have no cause of action against which they are supposed to be agitated. In other 19 OA 4036/2023 C-3/item-21 words, whether the present OA is like a PIL for which the present Tribunal has no jurisdiction?
b) Does the relaxation clause i.e. Rule 13 of the Indian Broadcasting (Engineers) Service Rules , 1981 empower the competent authority to fundamentally alter the basic characteristic and intent of the said Rules?
c) Do the two relaxations (i) substitution of promotion quota with direct recruitment quota and (ii) relaxation of educational qualification for direct recruitment amount to alter fundamentally the basic characteristics of the Indian Broadcasting (Engineers) Service Rules,1981?
d) Does the power to relax under Rule 13 of the Indian Broadcasting (Engineers) Service Rules, 1981 substitute the power of Rule making authorized to the competent authority under Article 309 of the Constitution of India?
9.1 Issue No (a): The learned counsel for the respondents has emphatically averred that the present applicants have been promoted to the rank of Assistant Engineers as on 1.01.2024 after filing the OA. They can be promoted to the next rank i.e Assistant Director in Junior Time Scale., only after completion of two years of regular service after 1.01.2024 in the rank of Assistant engineers. On the other hand, the Diploma holder Assistant Engineers vide the impugned order have been promoted to the Rank of AD (JTS) 20 OA 4036/2023 C-3/item-21 with effect from 14.12.2023 against direct quota and placed at the bottom of the batch. Hence, this promotion has not affected the chances of the promotion of the present applicants in any manner. They will be promoted to the rank of AD (JTS) only after 1.01.2026 and their seniority will be considered for the batch of 2026. Secondly, he averred, that the Diploma Assistant Engineers have been promoted against the direct recruitment quota and hence this action of the respondents has not affected the promotional avenues for the present applicants who would be promoted against promotion quota which has not been tinkered with. The above averment by the learned counsel for the respondents conveniently ignores the hierarchy and the promotional ladder for the life cycle of the Broadcasting Engineers starting from the JTS scale. The promotional avenues for an engineer in the JTS rank till the rank of Engineer-in-Chief (HAG Grade) gets squeezed because of significant number of Diploma Holders entering into the competition arena. More of the higher the cadre, the zone of consideration gets further squeezed. Moreover, a group, who originally did not have the required qualifications will march over the present applicants who are more deserving because they possess the required qualifications. In view of this, the applicants have a grievance in respect of the impugned order dated 14.12.2023 vide which the 21 OA 4036/2023 C-3/item-21 relaxations in respect of quota for the promotees vs. Direct recruitment has been altered and the private respondents were sought to be promoted relaxing the educational qualification for promotion to the rank of AD (JTS). Moreover, as the learned counsel for the applicants has averred, the respondents created 360 vacancies in favour of the Diploma holders where the said Rules had not intended to create any for them in the rank of AD (JTS). Accordingly, we are of the considered view that the present applicants have locus standi to challenge the decision of the Respondent department vide the impugned order dated 14.12.2013. The present OA does not have the characteristics of a PIL.
9.2 Issue Nos. (b) & (c) : These issues relate to the scope of relaxation clause in respect of the overall spirit and intent of the Rules. The Rule making powers of the government is derived from Article 309 of the constitution. On the other hand, the power to relax certain provisions in the Rules lies with the administrative Ministry. While Rule making is subordinate legislation, relaxation is purely an executive action derived from such subordinate legislation. Question arises, whether the derived power or delegated power can abrogate the basic intent and fundamental characteristics of the Rules. We may draw parallel with the Kesavananda Bharati Sripadagalvaru and other Vs. State of Kerala & 22 OA 4036/2023 C-3/item-21 Anr., Writ Petition (Civil) No. 135 of 1970, also known as the Kesavananda Bharati judgment, vide which the Supreme Court of India outlined that the basic structure of the Indian Constitution cannot be altered through an amendment to the Constitution. Similarly, the delegated power under the Rules can not authorize the delegated authority to overhaul the fundamental intent and structure of the Rules which authorize such delegation. In this regard, we tend to agree with the contention of the learned counsel for the applicants that the ratio of judgments of the Delhi High Court in Om Prakash (supra), Sonika Kumari (supra) as well as the Judgment of the Madras High Court in Sathish (supra) are squarely applicable in the instant case. As it has been held in the Om Prakash case, absolute power to relax any provision of the Rules would suffer from the vice of excessive delegation. We agree that the power to relax is not the power to annul or destroy the fundamental characteristics and intent of the Rules. We also agree that the provisions of relaxation is only for mitigating hardship or meet a special and deserving situation, without compromising basic requirements of the Recruitment/Service Rules. In the instant case, the respondent department has tried to abolish, through as an one time measure, the fundamental characteristics of the requirement for recruitment and promotion. The quota for 23 OA 4036/2023 C-3/item-21 the promotees and the Direct Recruits is a basic characteristic of any Service Rules. Similarly, the educational qualification for any particular rank/post for recruitment is also a fundamental characteristic of the service Rules. The government Respondents in this case, have altered the basic characteristics of the Service Rules by diverting Direct Recruitment quota for the promotees and also relaxing the educational qualification. Creating an avenue for non-deserving candidates against direct recruitment quota is ultra vires of the fundamental intent of the Rules. We agree with the contention of the learned counsel for the applicants that ratio of judgment of the Apex Court in Secretary, A.P. Public Service Commission (supra) is also squarely applicable in the instant case. While exercising the power of relaxation, the government cannot abdicate the Rule of law. The relaxation of essential qualification for a direct recruitment /promotion quota is contrary to Rules of law. This was also accepted by the Union Government while issuing OM dated 29.05.1985 by DO&PT. It has categorically stated that where an educational qualification has been prescribed in the recruitment Rules, the candidates shall satisfy the said qualification.
In view of the above, the relaxation by the Government Department of quota rules and Educational qualification for 24 OA 4036/2023 C-3/item-21 a particular post vide the impugned order dated 14.12.2013 is against settled law and also attracts violation of the basic intent of Article 309 of Constitution of India. 9.3 Issue No (d) : This issue has been already discussed in respect of Issue Nos. (b) & (c) above. As we have discussed, Article 309 empowers the Government to bring subordinate legislation in the form of Rules. Rule making is superior to any delegated power under the said Rules. Hence, the delegated powers cannot abrogate the fundamental characteristics and provisions of the said Rules. Rule making is a wider consultative process, initiated by the concerned Ministry/Department, which `undergoes inter- ministerial consultation including Ministry of law & Justice before being brought to the Cabinet for approval. Upon the approval of the Cabinet, the said Rules are notified in the government Gazette. The notified Rules are tabled on the floor of both the houses of Parliament for necessary action by the Parliament. On the other hand, the relaxation exercise is an executive action initiated by the Ministry and finally decided by the Ministry without undergoing the detailed procedure of subordinate legislation like Rule making. Hence, the power to relax is subordinate to the power of the Rules. A delegated power or subordinate power cannot abrogate the basic characteristics and intent of the superior subordinated legislation. In the instant case, the 25 OA 4036/2023 C-3/item-21 government respondents have tried to do exactly the same by abrogating the basic characteristics of the Indian Broadcasting (Engineering) Services Rules, 1981 by relaxing the quota and the educational requirements. 9.4 The attempt by the government by relaxing the Educational qualification amounts to giving a go away to the principle of meritocracy in recruitment and promotion of officials to a particular Rank. In the instant case, the Diploma Holder Assistant Engineers could not acquire the essential Bachelor degree in engineering which is basic requirement of AD (JTS). By relaxing the said requirement, the government department tries to bring through back door non-deserving candidates, jeopardizing the future prospects of more deserving candidates who could have come to the AD (JTS) rank through direct recruitment. Government of India, being the ideal employer, should have upheld the principles of Directive Principle of the Constitution in promoting meritocracy and upholding principles of non- discrimination under Articles 14 and 21 of the Constitution of India.
10. In view of the above, the present OA is allowed, the impugned order dated 14.12.2013 is quashed. 26 OA 4036/2023 C-3/item-21
11. Pending MA, if any, also stands disposed of.
(Dr. Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J) /dkm/